The Supreme Court turned to its grammar books on Thursday to give Facebook a win. It was about whether the internet giant had violated a three-decade-old federal law that curbs abusive telemarketing practices.
In a unanimous decision by Justice Sonia Sotomayor, the court supported a narrow definition of automated dialing systems, which are largely banned under the Telephone Consumer Protection Act of 1991. The 8-0 opinion and an assent written by Justice Samuel Alito contained a lively debate about the benefits of using language textbooks to understand the importance of legal texts.
The case was brought by Noah Duguid, who said he had received login notifications from Facebook on his phone since 2014 and was unable to stop them even though he had never created an account. For about 10 months, Duguid said, he tried to break free of the messages, texting and emailing the company to no avail. Duguid said the news continued even after being told “Facebook texts are now off”.
Duguid attempted a class action lawsuit for himself and others exposed to the same alleged abuse. However, Facebook asked a federal district court to dismiss Duguid’s lawsuit, referring to Congress’ definition of automated dialers as systems that “store or produce phone numbers to be called using a random or sequence number generator.”
Given that definition, Facebook argued, Duguid would have to prove that Facebook used a number generator to store or produce its phone number. He couldn’t, argued the company, for the simple reason that Facebook didn’t use a number generator at all.
According to Facebook, if the court had accepted Duguid’s argument, it could make using a smartphone to make a normal phone call illegal – given the ability to automatically save and call numbers.
However, Duguid argued that “using a random or sequence number generator” only applies to the production of its number, not the way the company stored it. And he argued that Facebook clearly stored his number.
The district court ruled Facebook and dismissed Duguid’s lawsuit, but the U.S. 9th appeals court overturned that decision in 2019, allowing Duguid’s case to move forward. The appeals court cited a case ruled a year earlier, Marks v Crunch San Diego.
The TCPA defines an automatic telephone dialing system as “a device that has the capacity to – (A) store telephone numbers to be stored or called using a random or sequence number generator, and (B) dial such numbers”.
“In Marks we made it clear that the adverbial phrase ‘using a random or sequence number generator’ only modifies the verb ‘produce’ and not the preceding verb ‘save’,” wrote Judge Mary McKeown.
On appeal, the Supreme Court ruled that this was not entirely correct. Citing the so-called “serial qualification canon”, Sotomayor wrote that the most natural reading of the definition would apply the number generator requirement to both the storage and the production of telephone numbers.
“As several leading papers explain,” wrote Sotomayor, “a qualifying phrase separated from the antecedents by a comma is evidence that the qualifier should apply to all antecedents, not just the immediately preceding one.”
To illustrate this, Sotomayor looked at a teacher who announced that students “are not allowed to do or review homework intended for a class using online homework-aid websites.”
“It would be strange to read this rule to prohibit students from doing homework with or without online assistance,” Sotomayor wrote.
Sotomayor cited a number of legal and grammatical heavyweights to support her, including a 2012 book written by the late Judge Antonin Scalia and grammarian Bryan Garner.
“According to conventional grammar rules”[w]If there is a simple, parallel construction that includes all nouns or verbs in a series, “a modifier at the end of the list” usually applies to the entire series, “wrote Sotomayor, citing Reading Law: The Interpretation of Legal Texts. “
Garner was one of the lawyers for Duguid on the case.
In court records, he and other lawyers argued that the Supreme Court should eschew the serial qualification canon in favor of the “distribution phrase canon” which would apply the modifier to the verbs best suited to the context, or to the “last”. preceding canon, “which would apply the modifier to the verb it immediately follows.
Garner also denied Facebook’s claim that the comma in the definition after the word “named” settled the matter.
“The comma prompts the reader to look further back to see what to do with a number generator, but doesn’t tell the reader how far back,” wrote Garner and the other lawyers, including Sergei Lemberg.
Garner declined to comment on the court’s decision.
Alito, largely in agreement with Sotomayor’s opinion, refused to join her. In his approval, he cited the majority’s “strong confidence” in the series qualification canon, which in his opinion had “played a prominent role in our cases of legal interpretation”.
After all, wrote Alito, grammar rules are not really rules.
“Even grammar, according to Garner, is usually just an attempt to describe the English language as it is actually used,” wrote Alito, citing another book by the author, “The Chicago Guide to Grammar, Usage and Punctuation.” “
Alito wrote that he agreed with Sotomayor’s interpretation of the teacher’s comment, who instructed her students not to use homework help websites. However, he wrote that understanding was not based on the syntax of the sentence, but on the “general understanding that teachers do not want to forbid students from doing homework”.
He noted what would happen if Teacher used the word “destroy” or “burn” instead of “completely”.
“The concept of using ‘online homework help websites’ to do all of these things would be nonsense, and no reader would interpret the phrase to mean that – even if suggested in the canon for series qualifiers”, he added.
Alito suggested empirically testing the strength of the various canons by analyzing text combinations from English-language databases and examining how people use so-called series modifiers in practice. In the vast majority of cases, he suggested, “the point of the matter” would likely reveal a meaning.
In a footnote, Sotomayor wrote that she agreed with Alito that speech cannons were not inflexible rules. But, she wrote, she disagreed with him insofar as he advocated judges who relied primarily on their own linguistic sense when interpreting ambiguous laws.
“Despite the legislature’s best efforts to write in ‘English prose’, there will inevitably be difficult ambiguities in the legal text,” wrote Sotomayor. “Courts should approach these problems of interpretation methodically, using traditional instruments of legal interpretation to confirm their beliefs about the ‘common understanding’ of words.”
The case is Facebook vs. Noah Duguid, nos. 19-511.